The new Obama flavor laptop border search policy makes an interesting statement about reasonable suspicion and terrorist watch lists:

The presence of an individual on a government-operated and government-vetted terrorist watch list will be sufficient to create reasonable suspicion of activities in violation of the laws enforced by CBP.

Objectively, I'm inclined to agree, and I'm glad they drew this line in the sand, as its an important negotiating point with regard to when searches should and should not be authorized. If you think about the way that reasonable suspicion is used by police officers in deciding whether or not to stop someone, clearly "suspect matched the description of a wanted felon" is sufficient to establish that, even if it later turns out of be a case of mistaken identity. A terrorist watch list is a similar kind of thing. If the United States had a real process for flagging people who are genuinely suspected terrorists, I'm sure that being flagged by that system would meet the criteria for reasonable suspicion.

I think that employing terrorist watch lists and passenger screening systems in making determinations about reasonable suspicion in the context of border searches is a good thing. It eliminates the rhetorical argument that if we constrained border searches of laptops to contexts where reasonable suspicion exists, we might miss a terrorist. People who are likely to be terrorists are going to be flagged by these systems, and so reasonable suspicion is going to exist in those cases. Therefore, requiring it would not hamper our anti-terrorism efforts.

However, it is possible to imagine a "terrorist watch list" that is so mismanaged that it is not objectively reasonable to suspect that people on the list might be involved with terrorism. Unfortunately, it sounds like that is exactly the kind of list that we have right now. A list with 1.2 million names on it including people who are dead, vague entries that seem to only include common place names, and people who are obviously not involved in terrorism. If the ACLU's characterization of this list is anywhere near accurate, the list is a complete joke. It simply is not objectively reasonable to suspect that someone on this list is dangerous.

Two implications follow from that:
1. If the list is ever used in a real prosecution to establish reasonable suspicion of someone who does not turn out to be a terrorist but is prosecuted for some unrelated crime, that person might be able to challenge the reasonableness of that suspicion because the list is too unreliable.

2. It would behoove those who wish to make use of these lists in this fashion to make sure that they are reliable, so the courts will take them seriously when they are relied on in a context where they run up against Constitutional rights.